SCHER v. BURKEAppellants, Richard Erickson, Wendie Malick, Richard Schroder, and Andrea Schroder, Response to Amicus Curiae BriefCal.September 20, 20165230104 en pe ? tog sag kf ae ee taf ho Leb PD ag hl es In The Supreme Court of California JAIME A. SCHER,et al., Plaintiffs and Respondents, US. JOHN F. BURKE,e¢al., Defendants and Appellants. After a Decision by the Court of Appeal Second Appellate District, Division Three-Case No. B235892 On Appeal from the Los Angeles Superior Court Hon. Malcolm Mackey, Judge-Case No. BC415646 ANSWERTO KERI MIKKELSON,ET AL.’S AMICUS BRIEF GARRETT & TULLY,P.C. LEVINSON ARSHONSKY *Ryan C. Squire, SBN 199473 & KURTZ, LLP Zi C. Lin, SBN 236989 Richard I. Arshonsky, SBN 155624 225 South Lake Avenue, Suite 1400 Jason J. Jarvis, SBN 2380158 Pasadena, California 91101 15303 Ventura Blvd., Suite 1650 (626) 577-9500 + Fax (626) 577-0813 Sherman Oaks, CA 91403 rsquire@garrett-tully.com (818) 382-3434 + Fax (818) 382-3433 rarshonsky@laklawvers.com Attorneys for Defendants and Appellants RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER 5230104 In The Supreme Court of California JAIME A. SCHER,et al., Plaintiffs and Respondents, US. JOHN F. BURKE,etal., Defendants and Appellants. After a Decision by the Court of Appeal Second Appellate District, Division Three-Case No. B235892 On Appeal from the Los Angeles Superior Court Hon. Malcolm Mackey, Judge-Case No. BC415646 ANSWERTO KERI MIKKELSON, ET AL.’S AMICUS BRIEF GARRETT & TULLY,P.C. LEVINSON ARSHONSKY *Ryan C. Squire, SBN 199473 & KURTZ, LLP Zi C. Lin, SBN 236989 Richard I. Arshonsky, SBN 155624 225 South Lake Avenue, Suite 1400 Jason J. Jarvis, SBN 230158 Pasadena, California 91101 15303 Ventura Blvd., Suite 1650 (626) 577-9500 * Fax (626) 577-0813 Sherman Oaks, CA 91403 rsquire@garrett-tully.com (818) 382-3434 + Fax (818) 382-3433 rarshonsky@laklawyers.com Attorneys for Defendants and Appellants RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER,and ANDREA D. SCHRODER I. TABLE OF CONTENTS Civil Code section 1009 bars all uses, not just “recreational” Page uses, from ripening into a “vested right.” o.oo eee ceceseeeessceceeeescees 6 II. Section 1009 does not merely apply to implied in law dedication: it applies to all formsof dedication that are created by public USC.ec ccc ce cece e cence nea eee ceca eer esaeeaeee eee esseesseeeeseussueeesasaesusesaesseansesnesanes 8 A. Section 1009 makes noreference to any particular theory of imphed dedication; on the contrary,it states public use will not confer any “vested right” in private property on the public or governMent........cccccccceseeececeeeseeeeeveesesteeecesenes 8 The statute applies to implied in fact dedication where a claim of implied in fact dedication is based on public use....9 Mikkelson’s interpretation would render parts of section 1OO9 superfluous. 0... ccccscceececeessssssseverseseveseeeeereeees 12 The legislative history confirms the statute applies to implied in fact dedication to the extent an implied in fact dedication is sought to be proved by public use. ................ 13 The Court need not decide whethersection 1009 applies to express common law dedication or implied in fact dedication because those theories are not before this COUPE. oc eececee cece cceeetntecseseusesesscecevssssseeceseeueseeceseesatesausseneeees 14 III. Mikkelson’s arguments undersection 813 miss the mark........... 16 A. Section 813 does not demonstrate that section 1009 applies only to implied in law dedication; section 1009 apples to both implied in fact and implied in law CECICATION. 0... cc cece cccccccceecsccsnsseesesevsttttntnetereetestesecerenes 16 The fact that the Legislature did not limit section 813 to coastal property does not mean that section 1009, subdivision (b) only bars recreational use of non-coastal property from ripening into a public dedication. ............... 16 1. The Legislature amended section 818 at the same time it added section 1009; because the Legislature was carving-out coastal property from the protections of section 1009, subdivision (b), the Legislature concurrently amended section 813 in order to protect owners in the coastal zone. ............ 17 N o Section 813 applies to all property-coastal and non-coastal; before it was amended, section 813 apphedto all property, and the Legislatureleft it that way when it amendedsection 813 at the same time it added section 1009.........0000cccccccecceececeeeeeceeeees 19 3. The amendments to SB 504-in which the Legislature amendedsection 813-demonstrate the Legislature did not mean “no recreational use” whenit stated “no use” in section 1009, subdivision (D). cee cecesccssescsesestsusssacssstassestesesessscsveveveveviveseessevesseceveve 29 4, If “no use” in section 1009 meant “no recreational use,” then section 1009, subdivision (f)’s reference to section 813 would meaningless-and inconsistent with section 818.ooo ceecesscccseeeeeueeaes 25 TV. Conclusion. ...cec ccc ccceccccccceecccseeecceuccecaueseeseseusesseusestecscesteeececssceeecccs. 27 TABLE OF AUTHORITIES Page CASES Burch v. Gombos (2000) 82 Cal.App.4th 352 [98 Cal.Rptr.2d 119]....... cece ecne seca eens 7 County of Inyo v. Given (1920) 183 Cal. 415 [191 P. 688)....ccccecccccessccsecesecssecessseesesseecetenteeesseses 7 County of Los Angeles v. Berk (1980) 26 Cal.3d 201 [161 Cal.Rptr. 742, 605 P.2d 381] ......ccccceccceceseeeees 9 County of Orange v. Chandler-Sherman Corp. (1976) 54 Cal.App.3d 561 [126 Cal. Rptr. 765].......... 0c cece cecces cece enaees 7 Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 [11 Cal.Rptr.3d 222, 86 P.3d 290]......cccceccceceeseeeee 8 Friends of Hastain Trail v. Coldwater Development LLC (2016) 1 CalApp.5th 1018 co.cc cece ccc cece eeeee tees sees ensenseeeseaeesenenan 7 Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810 [93 Cal.Rptr.2d 193]..........ccc cece eee ee ees 7 Gion v. City of Santa Cruz and Dietz v. King (1970) 2 Cal.3d 29 [84 Cal. Rptr. 162, 465 P.2d 50] 0...passim Hanshaw v. Long Valley Road Ass'n (2004) 116 Cal.App.4th 471 [11 Cal.Rptr.3d 357]oe24, 25 In re C.H. (2011) 53 Cal.4th 94 [133 Cal.Rptr.3d 578, 264 P.3d 357]............. eee, 12 Kirby v. Immoos Fire Protection, Inc, (2012) 53 Cal.4th 1244 [140 Cal.Rptr.3d 173, 274 P.8d 1160] cceececeececeee 8 McKinney v. Ruderman (1962) 203 Cal.App.2d 109, 115-116 [21 Cal. Rptr. 263]....0..cccccccceeseeeeee. 10 People v. Briceno (2004) 34 Cal.4th 451 [20 Cal.Rptr.3d 418, 99 P.3d 1007].)......eee25 Pulido v. Pereira (2015) 234 Cal.App.4th 1246 [184 Cal.Rptr.3d 754]... 24, 25 Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 285 [267 P.2d 10) oo... ccccccccccccccccece see eeeeeeeeensnenaas 9,11 Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278 [1380 Cal.Rptr.2d 486]........0.. cc cccee eee ne ee ees 12 STATUTES Civil Code, § 818 2...ccccccee ee eeeceeeeeeeteteaneeseceetesseeeeesseaeesasees passim Civil Code, § 846 .......ccccceccccccccccceseceecaeeeceaeceeseceneeesaueesteseneseeseeeensensneeee 23, 24 Civil Code, § 1009 0...teneeeceeececcseeeeeeeeeaeeeenans veveeeeteeetnes passim I. Civil Code section 1009 barsall uses, not just “recreational” uses, from ripening into a “vested right.” Mikkelson attempts to draw a distinction between implied in fact dedication and implhed in law dedication. She argues Civil Code section 1009 only apphes to “recreational” use, or if it applies to “any use,” it only apples to imphed in law dedication. Mikkelson is plainly mistaken. Mikkelson argues the reference in the preamble (subdivision (a)(1)) to “recreational use” supports the conclusion that section 1009 only bars “recreational use” from ripening into an implied dedication. As discussed at length in the Answer Brief on the Merits of Erickson et al., the preamble’s statement of purposeis not controlling. (See pp. 14- 31.) The purpose of section 1009 was to encourage private property ownersto allow the public to use their land for recreation, and in order to do so, section 1009, subdivision (b) prospectively abrogated the entire doctrine of common law dedication in the non-coastal zone to assure owners that they would not lose any property rights by doingso. Mikkelson’s and plaintiffs’ interpretation that the statute only precludes “recreational” uses from ripening into an implied dedication would be a half-measure that would frustrate the other purpose of section 1009, to wit, to stabilize the “marketability of recordtitles.” (§ 1009, subd. (a)(8).) As discussed on pages 27-30 of the Erickson Answer Brief, the Legislature wanted certainty. Using the undefined term “recreational” does not serve that purpose; it would only invite more litigation, because disputes would focus on what the term “recreational” meant, and whether the public use was “recreational.” (See Erickson 6 Answer Brief, pp. 28-30 for a discussion of the problems with the amorphousconcept of “recreation”-a concern that even the Legislative Counsel expressed when SB 504 was being considered.) Nor is there an exception for roads. Section 1009 applies to all uses, including roads. (See Erickson Answer Brief, at pp. 37-40.) For example, in Friends of Hastain Trail v. Coldwater Development LLC (2016) 1 Cal.App.5th 1018 (Friends of Hastain Trail), the court of appeal held that section 1009 prospectively abrogated Gion v. Santa Cruz and Dietz v. King (1970) 2 Cal.3d 29, 41 [84 Cal.Rptr. 162, 465 P.2d 50] (Gion-Dietz). The court further rejected the argument that different rules existed for implied dedication of roads. The court explained that “no different rules exist for roadways or other areas...” (Friends of Hastain Trail, 1 Cal.App.5th, at p. 1028, citing Gion-Dieiz, supra, 2 Cal.3d at pp. 41-42.)! The court surveyed the implied dedication caselaw, finding that “the doctrine of implied public dedication is not limited to any specific kind of real property.” Ud. at pp. 1028-1029, citing County of Los Angeles v. Berk, (1980) 26 Cal.3d 201, 214-215 [161 Cal.Rptr. 742, 605 P.2d 381]; Burch v. Gombos (2000) 82 Cal.App.4th 352, 355, 356-358 [98 Cal.Rptr.2d 119] [involving a dirt road]; Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 824 [93 Cal.Rptr.2d 193] (Blasius); County of Orange v. Chandler-Sherman Corp. (1976) 54 Cal.App.3d 561, 564 [126 Cal. Rptr. 765].) Thus, section 1009, which prospectively abrogated Gion-Dietz in the non-coastal zone, necessarily applies to roads. ' Recently published, on July 27, 2016. 7 Il. Section 1009 does not merely apply to implied in law dedication; it applies to all forms of dedication that are created by public use. Mikkelson is also plainly mistaken by arguing that if section 1009 applies to “any use,” it only apphes to implied in law dedication. A. Section 1009 makes no reference to any particular theory of implied dedication; on the contrary, it states public use will not confer any “vested right” in private property on the public or government. First, demonstrating that the Legislature did not intend for section 1009 to apply only to implied in law dedication (not implied in fact dedication), section 1009 makes no reference to or distinction between these two theories. Section 1009 does not mention “implied” dedication, except under the provisions pertaining to coastal property. (§ 1009, subds. (f), (g).) Even under the coastal provisions, the Legislature simply used the word “implied’-parsing the theory no further. (§ 1009, subds. (f), (g).) We must “presume the Legislature meant what it said.” (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1250 [140 Cal.Rptr.3d 173, 274 P.38d 1160].) It is improper for Mikkelson to insert that which the Legislature did not. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 786 [11 Cal.Rptr.3d 222, 86 P.38d 290] (“courts generally may not insert what the Legislature has omitted from a statute”].) B. The statute applies to implied in fact dedication where a claim of implied in fact dedication is based on public use. Second, section 1009 apples to implied in fact dedications that are based on public use-because the Legislature mandated that “no use” would give rise to a “vested right” in the public or the government. Dedication requires both (1) an intent by the owner to dedicate, and (2) acceptance by the public. (County of Inyo v. Given (1920) 183 Cal. 415, 418 [191 P. 688].) Before section 1009, both elements could be established by appropriate public use. Section 1009, however, barred public use occurring after the statute’s effective date from satisfying either element-intent or acceptance. “A common law dedication may be express or implied. Express dedication arises where the owner’s intent to dedicate is manifested in the overt acts of the owner, e.g., by execution of a deed. An implied dedication arises when the evidence supports an attribution of intent to dedicate without the presence of such acts. A dedication is implied in fact when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication. A dedication is imphed by law when the public use is adverse and exceeds the period for prescription.” (Blasius, supra, 78 Cal.App.4th 810, 821, original italics, citing, inter alia, Union Transportation Co. v. Sacramento County (1954) 42 Cal.2d 235, 241 [267 P.2d 10] (Union Transportation).) In County of Inyo v. Given, supra, 183 Cal. 415, this Court said, “[A] dedication, lke a contract, consists of an offer and acceptance, and it is settled law that a dedication is not binding until acceptance, proof of which must be unequivocal[citation]. The acceptance may be actual or umplied. It is actual when formal acceptance is made by the proper authorities, and imphed, when a use has been madeof the property by the public for such a length of time as will evidence an intention to accept the dedication.” (/d. at p. 418, italics added.) Thus, even in the case of express dedication, the owner’s offer must still be accepted-and before section 1009, public use could constitute the required acceptance. (See, e.g., McKinney v. Ruderman (1962) 203 Cal.App.2d 109, 115-116 [21 Cal.Rptr. 263] [filing a subdivision map showing a street is an offer to dedicate that could be accepted by public use “over a reasonable period of time”].) In short, historically, the owner’s offer could either be express or implied from public use, and the acceptance could either be express or implied from public use. The Legislature was not concerned with the myriad or technical theories that the public, the government, or private citizens like plaintiffs Scher and McAllister might assert in order to appropriate private property to public use (without compensation). Instead, the whole point of section 1009 was to prospectively bar public use of private property, alone, from conferring a “vested right” in the governmentor the public, regardless of the legal theory-except in the narrow circumstances expressly prescribed by section 1009, neither of which applies here.? The Legislature stated plainly: “no use of [private 2 To wit, expenditure of public funds for five years on (a) “visible improvements” on private property or (b) “the cleaning or maintenance related to the public use of” private property “in such a mannerso that the owner knows or should know that the public is making such use of his land.” (§ 1009, subds. (b), (c), (d).) The Legislature narrowed the “government expenditure” exception even further: no “vested right” is conferred on the government if the owner (1) grants the government LO property] by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently....” (§ 1009, subd. (b).) Section 1009 necessarily apples to both implied in fact and implied in law dedication, because public use is an element of both. (Union Transportation, 42 Cal.2d at p. 241.)° Indeed, by its plain meaning, the term “vested right” encompassesall permanent property rights, including implied in fact, and implied in law dedication. Webster’s online dictionary defines “vested right” as “a right belonging completely and unconditionally to a person as a property interest which cannot be impaired or taken away (as through retroactive legislation) without the consent of the owner.” ( las of September 19, 2016].) That interpretation 1s confirmed by the provision authorizing dedication by an owner’s “express written irrevocable offer of dedication,” which begins, “In addition to any procedure authorized by law and not prohibited by this section ....” (§ 1009, subd. (c), italics added.) In other words, the Legislature abolished any procedure for dedication that was contrary to section 1009-1.e., dedication based in any manner on public use of private property occurring after section 1009's effective date, regardless of the legal theory. permission, or (2) takes “reasonable steps to enjoin, remove or prohibit such use.” (/d., subd. (d).) 3 And it likewise necessarily applies to express dedication when the acceptance element is sought to be proved by public use occurring after March 1972. Plaintiffs, for their part, agree that there is “little practical difference” between express and implied dedication, because historically, each could be based on public use. (Plaintiffs’ Reply Brief on the Merits, p. 20.) 11 C. Mikkelson’s interpretation would render parts of section 1009 superfluous. Third, Mikkelson’s proposed interpretation would render provisions of section 1009 superfluous-contrary to fundamental rules of statutory construction. Un re C.H. (2011) 53 Cal.4th 94, 103 [133 Cal.Rptr.3d 573, 264 P.3d 357] [“It 1s a settled principle of statutory construction that courts should ‘strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous.’ [Citation.]}”].) Implied in fact dedication arises where, in addition to public use, “the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication.” (Blasius, 78 Cal.App.4th 810, 821.) If the Legislature had intended to allow such a theory to survive, the Legislature would not have required “an express written irrevocable offer of dedication.” (§ 1009, subd. (b); see id., subd. (c).) By including that provision, the Legislature was necessarily mandating that bare “acts or omissions of the owner” were no longer sufficient. Likewise, section 1009, subdivision (b)’s requirement that the express irrevocable offer to dedicate be accepted by a governmental body also contradicts another principle of implied in fact dedication, to wit, that it does not require a formal acceptance by a governmental body. (Western Aggregates, Inc. v. County of Yuba, (2002) 101 Cal.App.4th 278, 298 [130 Cal.Rptr.2d 436] [“Via R.S. 2477, Congress made an actual offer of dedication ... It 1s the acceptance which, when not done by formal governmental action, may be implied by the conduct of membersof the public.” [Italics in original.]].) 12 In short, the Legislature drew no distinction between implied in fact dedication and implied in law dedication. On the contrary, the breadth of the statute compels only one conclusion: that except as prescribed by the narrow statutory exceptions, the Legislature barred public use of private property occurring after the statute’s effective date from ripening into a “vested right”-regardlessof the theory. D. The legislative history confirms the statute applies to implied in fact dedication to the extent an implied in fact dedication is sought to be proved by public use. Fourth, the legislative history confirms the Legislature intended to prospectively abrogate the doctrine of implied dedication in the non- coastal zone, without regard to the theory of dedication. Section 3 of SB 504 provides in pertinent part: “nor shall this act be construedto affect, diminish or extinguish any right of rights vested as of the effective date hereof by reason of express or implied dedication, or otherwise.” (RJN to Erickson answer brief, Ex. D, p. 1848, emphasis added.) The Legislature necessarily intended for section 1009 to apply to rights that had not already “vested ... by reason of express or implied dedication, or otherwise.” As the Legislature explained, “The doctrine of implied dedication would be deleted prospectively except for the ‘coastal zone’ ....” (RJN in support of AOB of Erickson, Ex. F, Assem. Com. on Planning and Land Use, Analysis of Sen. Bill No. 504 (Legislative Sess.) July 20, 1971, p. 1, emphasis added; RJN in support of Answer to Mikkelson Brief, Ex A, Assem. Com. on Planning and Land Use, Analysis of Sen. Bill No. 504 (Legislative Sess.) July 20, 1971, p. 2 [“total abolition’].) 13 Likewise, SB 504’s author, Senator Robert J. Lagomarsino, did not distinguish between the theories of implied dedication. Instead, he explained to the Governor that no “use of the public generally of such property will create any legal threat to the owner’s title.” (RJN to Erickson answer brief on merits, Ex. A, Sen. Lagomarsino, letter to Gov. Reagan, Sep. 27, 1971, p. 2, emphasis added.) E. The Court need not decide whether section 1009 applies to express common law dedication or implied in fact dedication because those theories are not before this Court. Finally, all of this is much ado about nothing. The Court need not decide whether section 1009 bars public use from satisfying the “acceptance” element of express common law dedication. The case before this Court does not involve that theory. Plaintiffs did not raise express dedication in their petition for review, and this Court did not grant review on that basis. The only issue before this Court is: “Does Civil Code section 1009 preclude non-recreational use of non-coastal private property from ripening into an implied dedication of a public road?” In any event, the court of appeal rejected a theory of express common law dedication. Plaintiffs asserted such dedication based on irrevocable offers to dedicate that were recorded by defendant Marshall and by the predecessors of the defendant Schroder/Erickson properties. However, as the district court of appeal explained, those offers were for a “hiking and equestrian trail’ a “trail easement,’ and a “public access trails easement... limited to hiking and equestrian uses only” during “dayhght” hours. (Slip. opn., p. 34, original italics.) The court explained, 14 “(T]hese instruments do not dedicate public roads for the unlimited vehicular access at anytime of the day and night that plaintiffs seek.” (Slip Opn., p. 34.) “The express dedication of property for public use for horses and pedestrians alone does not result in implied dedications of the same land as a street for cars.” (Ship opn., p. 34; see AOB of Erickson, et al., pp. 61-62, 79-81; Combined Appellants’ Reply Brief and Cross-Respondents’ Brief of Ericksonet al., p. 21.) Plaintiffs also attempted to assert that a 1949 written easement and three “Declarations of Grant of Easements” recorded in 1968 and 1970 had dedicated Gold Stone and Henry Ridge as public roads. The district court of appeal rejected the claim, because these documents provided for “easements” that were “appurtenant” to specific real property, unless the conditions identified in the documents for establishing public roads over different portions of Henry Ridge and Gold Stone were established-whichneveroccurred. (Slip opn., pp. 35- 36; see AOB of Erickson, et al., pp. 43,70-78; Combined Appellants’ Reply Brief and Cross-Respondents’ Brief of Erickson et al., pp. 24-29.) In fact, the 1968 and 1970 declarations offered easements to owners in land sections other than where Plaintiffs’ Henry Ridge Property is located; thus, those easements would not have benefitted Plaintiffs’ Henry Ridge Property in any event. (Slip opn., pp. 14-15; AOB of Erickson, et al., pp. 70-78; Combined Appellants’ Reply Brief and Cross-Respondents’ Brief of Erickson et al., pp. 24-29; Answer Brief on the Merits of Erickson,et al., pp. 47-48.) In short, this Court need not decide whether public use can satisfy the “acceptance” element of express dedication, or decide the import of section 1009, subdivision (b)’s requirementof an “accept{ance] 15 by the county, city, or other public body to which the offer of dedication was made, in the mannerset forth in subdivision (c).” II. Mikkelson’s arguments under section 813 miss the mark. A. Section 813 does not demonstrate that section 1009 applies only to implied in law dedication; section 1009 applies to both implied in fact and implied in law dedication. Mikkelson’s argument that the Legislature amended section 813 to protect against imphed in fact dedication because section 1009 purportedly only protects against implied in law dedication misses the mark. As discussed above, section 1009 applies to implied in fact dedication where the purported “acceptance” is based on public use. Public use can no longer give rise to a “vested right” in the public or government excepted as provided in section 1009. B. The fact that the Legislature did not limit section 813 to coastal property does not mean that section 1009, subdivision (b) only bars recreational use of non-coastal property from ripening into a public dedication. Mikkelson further argues that “[i]f Section 1009 truly eliminated the doctrine of implied dedication in non-coastal areas of California, then the Legislature should have amended Section 813 to apply only in coastal areas of California.” (Amicus Br. 18.) Mikkelson concludes the 16 Legislature only meant for section 1009 to bar recreational use of non- coastal property from giving rise to a vested right in the public or government. Mikkelson is once again mistaken. 1. The Legislature amended section 813 at the same time it added section 1009; because the Legislature was carving-out coastal property from the protections of section 1009, subdivision (b), the Legislature concurrently amended section 813 in order to protect owners in the coastal zone. The legislative history of SB 504 (including the various amendments) showssection 813 was amended to bolster protections for coastal zone owners because the coastal zone was carved-out of section 1009, subdivision (b). SB 504 was introduced in the Senate on March 9, 1971. (RJN to Erickson answer brief, Ex. D, p. LIS-la.) It was first amended, in the Senate, on May 4, 1971. Ud., at p. LIS-1b.) It was amended a second time, in the Assembly, on June 10, 1971. As finally enacted, section 1009 carved-out the coastal zone from the protections of subdivision (b). (§ 1009, subd. (e).) But the coastal- zone carve-out was not part of the original bill. This carve-out was added by the third amendment of SB 504 in the Assembly, on July 22, 1971. (RJN to Erickson answerbrief, Ex. D, p. LIS-1d; see John Briscoe & Jan S. Stevens, Gion After Seven Years: Revolution or Evolution? (1977) 53 L.A. Bar J. 207, 224.) Until then, subdivision (b)’s protections applied to both the coastal zone and the non-coastal zone. 17 In this same amendment to SB 504, the Legislature added the amendments to section 813, a statute that was originally enacted in 1963. (RJN to Erickson answerbrief, Ex. D, p. LIS-1d.) This same July 22, 1971 amendment also added subsection (f) to section 1009, which listed actions that a coastal zone owner could take to prevent public use from ripening into a dedication. (RJN to Erickson answerbrief, Ex. D, p. LIS-1d.) In his letter urging the Governor to sign the bill, Senator Lagomarsino confirmed section 813 was amended to give greater protections to coastal zone owners in the wake of the Legislature’s carving-out the coastal zone from section 1009’s protections: As amended on July 20, the bill distinguishes between property adjacent to the coast, bays, and estuaries, and other private lands in the State. Owners of property lying within 1,000 yards inland of the mean high tide line of the ocean, or between the mean high tide line and a nearer public would be required to take positive steps to avoid losing rights to property through future public uses. If the coastal owner is willing to allow public use of coastal lands he could do one of the following: (a) Record consent to use [section 813] (b) Post appropriate signs [section 1008] (c) Publish notice of consent, or (d) Enter into an agreement with a governmental agency providing for public use of the land. 18 Such use could be subject to reasonable restrictions as to the time, place and manner.If the coastal owner is not willing to allow public use of his property he can enforce trespass laws. The amendments affecting coastal property reflect the constitutional rights of the public to use State tidelands. For all other property, the bill provides that no future use by the public generally of such property will create any legal threat to the owner’s title. (RJN to Erickson answerbrief, Ex. A, Sen. Lagomarsino, letter to Gov. Reagan, Sep. 27, 1971, pp. 1-2, emphasis added.) In short, section 813 was amended-and section 1009, subdivision (f) was added concurrently-to protect the coastal zone owner, who wasnowleft unprotected by section 1009, subdivision (b). 2. Section 813 applies to all property-coastal and non- coastal; before it was amended, section 813 applied to all property, and the Legislature left it that way when it amended section 813 at the same time it added section 1009. Moreover, the amendments to section 813 do not support Mikkelson’s assertion that section 1009, subdivision (b) was not intended to abrogate the doctrine of impled dedication in the non- coastal zone. Section 813 was amended as follows (deleted language is stricken-through; added language is underlined): The holder of record title to land may record in the office of the recorder of any county in which any part of the land is situated, anettee-ofeons nt-tothease 19 histand,-or-any_pertion-thereef, desertbedinnotice a description of said land and a_notice reading substantially as follows: “The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner: Section 813, Civil Code.” The recorded notice ef-eernsentis is conclusive evidence that subsequent use of the land fer-sueh purpese during the time such notice 1s in effect by the public or any user for any purpose (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is permissive and with consent in any judicial proceeding involving the issue as to whether all or any portion of such land has been dedicated to public use or whether any user has _a prescriptive right in such land or any portion thereof. The notice ef-eensent may be revoked by the holder of record title by recording a notice of revocation in the office of the recorder wherein the notice efeensent is recorded. After recording a notice pursuant to this section, and prior to any revocation thereof, the owner shall not prevent any public use appropriate thereto by physical obstruction, notice or otherwise. 20 In the event of use by other than the general public, any such notices, to be effective, shall also be served by registered mail on the user. The recording of a notice pursuant to this section shall not be deemedto affect rights vested at the time of recording. The permission for public use of real property provided for in such a recorded notice may be conditioned upon reasonable restrictions on the time, place, and manner of such public use, and no use in violation of such restrictions shall be considered public use for purposes of a finding of implied dedication. Section 813 applies to all property-coastal and non-coastal. That fact does not mean the Legislature only intended for section 1009, subdivision (b) to bar recreational use of non-coastal property from ripening into a vested right. Nor is there somehow an inherent inconsistency behind the Legislature’s decision to apply section 1009, subdivision (b) to non-coastal property and section 8138 to all property. Section 813 was a pre-existing statute, enacted in 1963. Before SB 504, section 813 permitted landowners to record “a notice of consent to the use of his land, or any portion thereof, for the purpose described in the notice.” The statute did not state that such notices were only effective in the coastal zone; they applied to all property. When it enacted SB 504, the Legislature obviously did not want to nullify all notices that had already been recorded in the non-coastal zone. Hence, the Legislature left section 813 applicable to all property. 21 The Legislature left section 813 applicable to all property for yet another reason. Before SB 504, a section 813 notice barred not just an imphed public dedication; it also barred a private easement by prescription. That feature remained after section 813 was amended. Again, the Legislature did not want to nullify notices that had already been recorded. The Legislature wanted to ensure both (1) the continued validity of pre-SB 504 notices, and (2) that owners could continue to record section 813 notices in order to bar future private prescriptive easements. Perhaps most important, section 1009, subdivision (b)’s bar expressly apphes “/rjegardless of whether or not a private ownerof real property has recorded a notice of consent to use of any particular property pursuant to Section 813 of the Civil Code ....” (§ 1009, subd. (b), italics added.) The fact the Legislature said “regardless” necessarily means the Legislature believed there could be overlap between the two statutes. In other words, the Legislature was stating that even if a section 813 notice was recorded, section 1009, subdivision (b) would still apply. The Legislature was expanding individual rights, not narrowing them. 3. The amendments to SB 504-in which the Legislature amended section 813-demonstrate the Legislature did not mean “no recreational use” when it stated “no use” in section 1009, subdivision (b). Moreover, contrary to Mikkelson’s assertion, the amendments to SB 504 that carved-out the coastal zone and amended section 813 support the conclusion that the Legislature did not mean “no recreational use” whenit said “no use” in section 1009, subdivision (b). 22 The amendments show the Legislature knows how to qualify and hmit the use it is referring to, if it means to do so. Section 813 states in part, “The recorded notice is conclusive evidence that subsequent use of the land during the time such notice is in effect by the public or any user for any purpose (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is permissive and with consent ....” (Language added by amendment is underlined.) The Legislature thus amended section 813 to state: “(other than any use expressly allowed by a written or recorded map, agreement, deed or dedication).” Section 1009, subdivision (b) contains no such qualification or limitation. Likewise, recall the 1971 Legislative Counsel was concerned with enacting a statute in response to Gion-Dietz that did not define “recreational.” (Answer Brief on the Merits of Erickson, et al., p. 28.)4 Section 1009 does not define “recreational’-nor was there a need to do so, because subdivision (b) mandates “no use.” The same 1971 Legislature that enacted section 1009 and amended section 813 also added “rock collecting” to the long list of “recreational” activities subject to the protections of Civil Code section 846. (Answer Brief on the Merits of Erickson, et al., pp. 31-34.) Had the Legislature meant “no recreational use” of coastal property when it said “no use” in section 1009, the Legislature would have defined “recreational’-as 4 The Legislative Counsel proposed language for a competingbill, which targeted “use of the land for any recreational purpose,” but the Legislative Counsel noted that “a question could be raised” about the meaning of “recreational purpose” unless that phrase were defined: “in the absence of any definition, a question could be raised as to the scope of the meaningto be attributed to such ‘recreational purpose.’ ". (RIN, Ex. C, Legislative Counsel George Murphy, letter to Assemblyman Paul Priolo, Apr. 15, 1971, emphasis added.) 23 admonished by the Legislative Counsel, and as the Legislature did when it amended section 846 that same year. The June 1971 amendments to SB 504-including addingsection 1009, subdivision (f)-further demonstrate the Legislature did not mean “no recreational use” when it said “no use” in subdivision (b). Subdivision (f) shows the Legislature was not defining the property to which subdivision (b) was subject based on the use to which the property was put; it was defining the property to which subdivision (b) was subject based on the location of the property-coastal or non- coastal. As noted in the Answer Brief on the Merits of Erickson et al. (at pp. 34-36), Pulido v. Pereira (2015) 234 Cal.App.4th 1246, 1252 [184 Cal.Rptr.3d 754] and Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 485 [11 Cal.Rptr.3d 357] held that subdivision (b) bars only recreational use from resulting in a vested right. Those cases concluded that “such property” in subdivision (b)’s phrase “no use of such property” refers back to subdivision (a)’s phrase “lands available for public recreational use.” (Pulido at p. 1252; Hanshaw at p. 485.) As discussed in the prior briefing of Erickson et al., these cases are mistaken. “[S]uch property” in subdivision (b) refers simply and naturally to “private” property used earlier in that very sentence. But subdivision (f) demonstrates these cases are mistaken as well. Like subdivision (b), subdivision (f) also uses the simple phrase “no use”: “No use, subsequent to the effective date of this section, by the public of property described in subdivision (e) [coastal property] shall constitute evidence or be admissible as evidence that the public or any governmental body or unit has any right in such property by implied dedication if the owner” (1) posts signs under Civil Code section 1009, 24 or (2) records a notice under section 813, or (3) enters into a written agreement with the government. If Pulido and Hanshaw were correct that “such” refers to “lands available for public recreational use’-in other words, that the Legislature was defining the type of property based not on location but on the use to which it was being put-then subdivision (f) would have stated, “No use, subsequent to the effective date of this section, by the public of such property, if such property is located within the zone described in subdivision (e)-shall constitute evidence ....” But the Legislature did not. Instead, it broadly carved-out an entire zone of property, based on where that property was located, not based on how it was being used. A, If “no use” in section 1009 meant “no recreational use,” then section 1009, subdivision (f)’s reference to section 813 would meaningless-and inconsistent with section 813. “ “When a word or phrase is repeated in a statute, it is normally presumed to have the same meaning throughout.’ [Citation.]” (People v. Briceno (2004) 34 Cal.4th 451, 461 [20 Cal.Rptr.3d 418, 99 P.3d 1007].) If “no use” in section 1009, subdivision (b) means “no recreational use,” then “no use” in subdivision (f) must also mean “no recreational use.” That interpretation, however, would render part of section 813 meaningless and inconsistent with section 1009. Section 1009, subdivision (f) states no dedication can occur if an owner records a notice under section 813. There is no dispute that section 813 is not hmited to just “recreational” use; it applies to non- recreational use as well. Yet, what would be the point of section 1009, 25 subdivision (f)’s stating that “no recreational use” can ripen into an imphed dedication if the owner records a notice under section 813, given that section 8138 already states recording a notice bars “any use whatsoever” from ripening into an implied dedication (or a prescriptive easement)? Section 1009, subdivisions (b) and (f) do not merely bar recreational use from ripening into an implied dedication. They barall uses from doing so. kok x In sum, section 1009, subdivision (b) was intended to apply broadly to bar public use in the non-coastal zone from ripening into a “vested right” in the public or government-includingrecreational and non-recreational use. The Legislature did not intend for section 1009, subdivision (b) to apply only to recreational use and for section 813 to apply to all uses as Mikkelson suggests. The Legislature’s use of the term “regardless” in section 1009, subdivision (b) makes clear the Legislature intended for subdivision (b) to apply even if an owner had recorded a section 813 notice. 26 IV. Conclusion. Civil Code section 1009 prospectively abrogated imphed dedication by any public use in the non-coastal zone. The Court should affirm the court of appeal’s opinion. DATED: September 19, 2016 Respectfully submitted, GARRETT & TULLY,P.C. Ryan C. Squire Zi C. Lin By: DD, iCAB Attorngys for Defendants and Appellants Richard Erickson, Wendie Malick, Andrea D. Schroder, and Richard B. Schroder 27 CERTIFICATE OF WORD COUNT I hereby certify that the foregoing Answer to Keri Mikkelson et al’s Amicus Brief contains 7,086 words. In reachingthis total, I relied on the word count of the computer program used to prepare this brief. This certification is prepared in accordance with California Rules of Court, rule 8.204(c)(1), stating the number of words in an answering brief may not exceed 14,000. DATED: September 19, 2016 Respectfully submitted, GARRETT & TULLY,P.C. Ryan C. Squire Zi C. Lin Motunrayo D. Akinmurele By: DA a Ryar. Sqaie Attorneys for Defendants and Appellants Richard Erickson, Wendie Malick, Andrea D. Schroder, and Richard B. Schroder 28 CERTIFICATE OF MAILING I am and wasatall times herein mentioned over the age of 18 years and not a party to the action in which this service is made. Atall times herein mentioned I have been employed in the County of Los Angeles in the office of a memberof the bar of this court at whose direction the service was made. My business address is 225 S. Lake Ave., Suite 1400, Pasadena, California 91101. On September 19, 2016, I served an executed copy of the Answer to Keri Mikkelson,et al.'s Amicus Brief Pursuant to the court’s e-submissions procedures, a true and correct copy was uploaded through their on-line system. The original and eight copies were deposited in the facility regularly maintained by Federal Express, in a sealed envelope with delivery fees fully provided for and addressed as follows Clerk of the Supreme Court Supreme Court of California Earl Warren Bldg. - Civic Center 350 McAllister Street, Rm 1295 San Francisco, CA 94102-4797 I caused such envelope with postage thereon fully prepaid to be placed in the U.S. mail at Pasadena, California. I am “readily familiar’ with the firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. > Court of Appeal Second District, Div. 3 Ronal Reagan State Building 300 So. Spring Street 2-4 Floor, North Tower, Los Angeles, CA 90013 29 Superior Court of Los Angeles Hon. Malcolm Mackey, Dept. 55 111 No. Hill Street Los Angeles, CA 90012 June S. Ailin, Esq. ALESHIRE & WYNDER, LLP 2361 Rosecrans Ave., Ste 475 El Segundo, CA 90245 Tel (810) 527-6660 ° Fax (810) 5382-7395 E-mail: jailin@awattorneys.com Attorney for Plaintiffs Jaime A. Scher and Jane McAllister Bennett Kerns, Esq. LAW OFFICES OF BENNETT KERNS 2001 Wilshire Boulevard, Suite 200 Santa Monica, CA 90403-5789 Tel (810) 452-5977 »° Fax (310) 828-2146 E-mail: kernslegal@vahoo.com Attorney for Defendants John Burke, Germaine Burke and Bennett Kerns, trustee of the A.S.A. Trust, Dated June 28, 2005 Robert S. Gerstein, Esq. LAW OFFICES OF ROBERT S. GERSTEIN 723 Ocean Front Walk Venice, CA 90291 Telephone: (810) 820-1939 Facsimile: (810) 820-1917 E-mail: robert.gersteinl@verizon.net Attorney for Defendants John Burke, Germaine Burke and Bennett Kerns, trustee of the A.S.A. Trust, Dated June 28, 2005 30 Wendy Cole Lascher, Esq. FERGUSON CASE ORR PATERSON 1050 South Kimball Road Ventura, CA 93004 Telephone: (805) 659-6800 Facsimile: (805) 659-6818 E-mail: wlascher@fcoplaw.com Attorney for Defendant Gemma Marshall Richard I. Arshonsky, Esq. Jason J. Jarvis, Esq. LEVINSON ARSHONSKY & KURTZ, LLP 15303 Ventura Blvd., Suite 1650 Sherman Oaks, CA 91408 (818) 382-3434 » Fax (818) 382-3433 rarshonsky@laklawyers.com Attorneys for Defendants, Appellants, and Cross-respondents Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder I declare under penalty of perjury under the laws of the State of California that the above is true and correct and, that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on September 19, 2016 at-Pasadena, California. LeCtormen DELORISE CAMERON bl
